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Tsonos v. Tsonos

Supreme Court of Rhode Island

December 18, 2019

Ana Tsonos
v.
Nicholas Tsonos.

          Providence County Family Court (P 11-236) Felix E. Gill, General Magistrate

          For Plaintiff: Tiffinay A. Antoch, Esq.

          For Defendant: Nicholas Tsonos, Pro Se

          Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

          OPINION

          PAUL A. SUTTELL CHIEF JUSTICE

         Before the Court are former spouses who dispute the placement of their children, the visitation schedule, and whether the defendant should be subject to a mental health evaluation. This case came before the Supreme Court pursuant to an order directing the parties to appear and show cause why the issues raised in this appeal should not be summarily decided. After considering the parties' written and oral submissions and reviewing the record, we conclude that cause has not been shown and that this case may be decided without further briefing or argument. For the reasons set forth in this opinion, we affirm the order of the Family Court.

         I Facts and Procedural History

         Ana and Nicholas[1] were married on August 3, 2003, and they had three children, Noah, Jeffrey, and Grayson, born in 2004, 2006, and 2010, respectively. Ana filed for divorce on February 3, 2011, citing irreconcilable differences. The parties entered into a marital settlement agreement on August 16, 2011, and final judgment entered on February 14, 2012, which incorporated, but did not merge, the marital settlement agreement. The agreement provided, among other terms, that the parties share joint custody of their three minor children and assigned physical possession to Ana with visitation for Nicholas.[2]

         In 2014, Ana filed a motion for ex parte relief seeking to suspend Nicholas's overnight visitation after learning that Nicholas had left the children at his home without supervision. Her motion was granted, and, thereafter, the parties entered into a consent order that reinstated Nicholas's visitation. Over the next few years, the parties filed a bevy of motions, of which the following are relevant to the matter now before the Court: Ana's motion for Nicholas to submit to a psychological evaluation pursuant to Rule 35 of the Family Court Rules of Domestic Relations Procedure; Ana's ex parte motion to suspend Nicholas's unsupervised visitation; Ana's motion for the children to discontinue counseling with Laura Ryan, a licensed independent clinical social worker (LICSW) whom the children had seen for therapy; and Nicholas's motions to modify custody and visitation, which were first filed in August 2016.

         Hearings on these motions took place over several days between April and December of 2017, during which the trial justice[3] heard testimony from Ana and Nicholas; their three children; Joseph Warzycha, an investigator for the Rhode Island Society for the Prevention of Cruelty to Animals (SPCA); and Laura Ryan. The testimony elicited at the hearings revealed the following events. Ana testified that Grayson, the youngest child, visited Nicholas in mid-December 2016, and, after he returned to her home, he was "hysterical" because Nicholas had left King, a two-and-a-half-year-old German shepherd, outside in the cold. According to Ana, Grayson was "inconsolable[, ]" and "he was afraid that his dog was going to die." Ana called the police to have them check on King because she "didn't know what else to do[.]" A few days later, North Providence Animal Control contacted Warzycha to investigate the complaint of an animal having been "left outside during inclement weather without adequate shelter."

         Warzycha testified that he contacted Ana the same day and arranged a time to speak with the children that afternoon. According to Warzycha, the children reported that Nicholas had kicked and punched the dog on repeated occasions, left the dog outside in inclement weather without adequate shelter, and had not provided the dog with adequate food and water. Warzycha found that there was insufficient evidence to charge Nicholas with leaving an animal outside during inclement weather, but, after interviewing the children, he found probable cause that Nicholas had physically abused King. He also testified that King exhibited behavior consistent with physical abuse but admitted that he had had no prior interaction with King, so the behavior he observed could have been typical for King.

         On December 22, 2016, the North Providence police and the SPCA contacted Nicholas and made arrangements to pick up King. Nicholas's visitation with the children was suspended that same day due to the pending animal cruelty investigation. Nicholas was offered supervised visits at the courthouse while the investigation was pending, but he declined the offer.

         On January 12, 2017, Nicholas filed a motion seeking to limit his own visitation with his children, stating that he did not have "the consistent capacity for conventional visitation opportunities" due to the logistics of defending against the allegation of animal abuse, meeting his child support obligations, and "maintaining his employment." The court granted this motion by an order dated February 6, 2017. One month later, Nicholas moved to terminate the temporary suspension, which was granted, and the parties were ordered to resume the visitation schedule established in the marital settlement agreement. Warzycha testified that King was returned to Nicholas that same month.

         Shortly thereafter, the children went to Noah's hockey game with Nicholas. After a conversation with Noah the next day, Ana asked her father to go by Nicholas's home and check on King. She then contacted animal control because her father had observed the dog outside in 4-degree weather in the snow. The dog was seized by animal control while Nicholas was at his office in Boston. Nicholas testified that he knew about his children's concerns over his treatment of King at the time of this latter incident because he had read affidavits from Ana and the police reports from the December incident, even though the children had not addressed their concerns about the dog with him directly. After this second incident, Ana filed an ex parte motion to modify visitation and a motion for a mental health evaluation of Nicholas under Rule 35. The trial justice granted the ex parte motion and suspended Nicholas's visitation effective immediately.

         Ana testified that she was concerned for her children because they had witnessed abusive behavior toward a dog that they loved. Ana was worried that the children's awareness of Nicholas's behavior toward the dog was affecting them negatively, but she said she was comfortable with supervised visitation and wanted the children to see their father.

         Nicholas's testimony primarily focused on the correctness of his actions with regard to King. He testified at great length about King's health, the adequacy of the outdoor doghouse, and about exactly how long King had been outside on the day of the hockey game. Nicholas further testified that the children never addressed any concerns about the dog to him, and he had no reason to believe the children did not want to talk to him about their concerns. He believed his child's reaction to King was "irrational" and "f[ound] it ...


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